Canada: The New All Families Are Equal Act

Last Updated: March 13 2017
Article by Pamela Liang


Focus on succession rights of posthumously conceived children

  • Assisted Human Reproduction Act ("AHRA") enacted by the federal government in 2004
  • Legal parentage and succession are governed by provincial law
  • Provincial legislation needed to address the succession rights of children conceived posthumously and the legal parentage of children born through assisted reproduction technologies that accords with the requirements of AHRA

Bill 137, Cy and Ruby's Act (Parental Recognition), 2015

  • Private member's bill introduced in an effort to recognize same sex couples and the increasing use of assisted reproduction
  • Change to the definition of "Issue" proposed for:
  • Children's Law Reform Act ("CLRA")
  • Vital Statistics Act
  • Change of Name Act
  • Parallel amendments not proposed for the Succession Law Reform Act ("SLRA")

Bill 28, All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016

  • September 29, 2016 – Ontario introduced Bill 28
  • included proposed amendments to the SLRA and other various statutes to reflect the new rules of parentage
  • November 29, 2016 – Passed third reading in the Legislature
  • December 5, 2016 – received Royal Assent
  • January 1, 2017 – in force


Amendments to CLRA and other Acts

  • The term "parent" replaces the terms "mother" and "father"
  • Eliminates the assumption that a child has no more than two parents
  • Removes all references to persons being "natural parents" of a child and to persons being related "by blood"
  • Allows up to four people to enter a "pre‐conception parentage agreement" (PCPA) to be recognized as a child's parents
  • Allows up to four "intended parents" to enter a "surrogacy agreement" with a surrogate, who agrees to relinquish entitlement to parentage after the child is seven days old


Amendments to the Succession Law Reform Act ("SLRA")

  • Now includes a child conceived and born alive after the parent's death, upon meeting certain conditions set out in section 1.1(1) of the SLRA

SLRA s. 1.1(1) Posthumous conception conditions

The following conditions respecting a child conceived and born alive after a person's death apply for the purposes of this Act:

  1. The person who, at the time of the death of the deceased person, was his or her spouse, must give written notice to the Estate Registrar for Ontario that the person may use reproductive material or an embryo to attempt to conceive, through assisted reproduction and with or without a surrogate, a child in relation to which the deceased person intended to be a parent.
  2. The notice under paragraph 1 must be in the form provided by the Ministry of the Attorney General and given no later than six months after the deceased person's death.
  3. The posthumously‐conceived child must be born no later than the third anniversary of the deceased person's death, or such later time as may be specified by the Superior Court of Justice under subsection (3).
  4. A court has made a declaration under section 12 of the Children's Law Reform Act establishing the deceased person's parentage of the posthumously‐conceived child.


Children's Law Reform Act

Section 12:

12. (1) A person who, at the time of a deceased person's death, was his or her spouse, may apply to the court for a declaration that the deceased person is a parent of a child conceived after his or her death through assisted reproduction. 2016, c. 23, s. 1 (1).

12.(3) The court may grant the declaration if the following conditions are met:

  1. The deceased person consented in writing to be, together with the applicant, the parents of a child conceived posthumously through assisted reproduction, and did not withdraw the consent before his or her death.
  2. If the child was born to a surrogate, the applicant is a parent of the child under section 10, and there is no other parent of the child. 2016, c. 23, s. 1 (1).


Succession Law Reform Act

Section 47:

47.(10) For the purposes of this section, descendants and relatives of the deceased conceived and born alive after the death of the deceased shall inherit as if they had been born in the lifetime of the deceased and had survived him or her, if the conditions in subsection 1.1 (1) are met. 2016, c. 23, s. 71 (7).

47.(11) The right of a descendant or relative to whom subsection (10) applies to inherit begins on the day he or she is born. 2016, c. 23, s. 71 (7).

Section 57:

57.(2) For the purposes of clause (c) of the definition of "dependant" in subsection (1), where the conditions in subsection 1.1 (1) are met in relation to a child conceived and born alive after the death of the deceased, the deceased is deemed to have been, immediately before his or her death, under a legal obligation to provide support to the child. 2016, c. 23, s. 71 (9).

Section 59:

59.(2) An application may be made under subsection (1) by a surviving spouse who gives notice under paragraph 1 of subsection 1.1 (1) on behalf of a child of the deceased that is referred to in the notice and is not yet conceived, if the application is made no later than six months after the death of the deceased. 2016, c. 23, s. 71 (10).


Estate planning

  • Form of consent for the use of reproductive material

    • Clarification needed with respect to form
    • Written consent
    • Other requirements?
  • Form of withdrawal does not have same requirements

    • Increased uncertainty if written consent not required
    • What constitutes withdrawal by action?

Estate administration

  • Notice of intention to use reproductive material must be provided to the Estate Registrar

    • In contrast, appointed estate representative(s) and the beneficiaries are not required to be notified
    • Will Estate Registrar have an obligation to notify applicants for a Certificate of Appointment of Estate Trustee with or without a Will?
    • Responsibility of estate trustees to inquire?
    • Rights of posthumously conceived children to deceased's assets that pass outside of the estate?
  • Limitation period for posthumous births

    • Court may extend beyond the 3‐year period, on a case by case basis
    • Administration of an estate may need to be extended to account for such potential beneficiaries

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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